Opinion
No. 2002-1180 RI C.
Decided December 17, 2003.
Appeal by defendant from an order of the Civil Court, Richmond County (E. Vitaliano, J.), entered June 20, 2002, which denied its motion to dismiss the complaint pursuant to CPLR 3126 based upon plaintiffs noncompliance with discovery orders.
Order modified by providing that defendants motion to dismiss is denied on condition that plaintiffs attorney pay $500 to defendant within 20 days of the date of the order hereon, and by providing that plaintiff furnish defendant with all outstanding authorizations within 30 days of the date of the order hereon, and that plaintiff appear for an examination before trial within 60 days of the date of the order hereon at a time and place to be specified in a written notice of not more than 10 days to be given by defendant, or at such time and place as the parties may agree; otherwise, defendant's motion to dismiss is granted. As so modified, order affirmed without costs.
PRESENT: PESCE, P.J., ARON1N and PATTERSON, JJ.
The nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the trial court (see Patterson v. New York City Health Hosps. Corp., 284 AD2d 516). Within such discretion is the dismissal of a pleading "where a party disobeys a court order, and by his conduct frustrates the disclosure scheme provided by the CPLR" (Castrignano v. Flynn, 255 AD2d 352, 352). The drastic remedy of striking a pleading is, however, inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious or in bad faith (see Hollymount Corp. v. Myung J. Park Corp., 300 AD2d 444 [20021). Although there is no question that plaintiffs counsel acted in a most dilatory manner, it does not appear, based on this record, that his conduct was willful or contumacious. Nevertheless, because of the extended period of delay involved herein, a conditional order would have been a more appropriate disposition under the circumstances of this case.
Pesce, P.J., and Aronin, J., concur.
Patterson, J., dissents in a separate memorandum.
While I agree with my colleagues that the nature and degree of the penalty to be imposed 'upon a motion pursuant to CPLR 3126 is a matter of the lower court's discretion ( see Patterson v. New York City Health Hosps. Corp., 284 AD2d 516), it is my opinion that the court below improvidently exercised its discretion in denying defendant's motion to dismiss the complaint.
The instant personal injury action arose out of an accident which is claimed to have occurred on January 4, 1995, when plaintiff allegedly slipped on a slippery foreign substance on the floor of defendant hospital, which caused him to fall and fracture his right ankle. A summons and complaint were filed in the Supreme Court of Richmond County and served on the defendant in September of 1995. In October of 1995, an answer and demand for a bill of particulars were served. The bill of particulars was not received by defendant until May of 1996, after defendant was forced to make a motion to preclude (which motion was ultimately withdrawn). In October of 1996, a preliminary conference (PC) order directed that EBTs of all parties be held within two months of the order, and that plaintiff provide defendant with various items of discovery within 30 days. By the end of 1997, EBTs had yet to be conducted and, by "so ordered" stipulation following a compliance conference, the parties set up a new discovery schedule. It appears that during 1998 and 1999, there was no activity in the case. In June of 1999, the case was transferred to the Civil Court pursuant to CPLR 325 (d), but, due to administrative errors, did not actually reach the Civil Court until October of 2000.
In May of 2002, the items of discovery requested by defendant had still not been exchanged and EBTs had still not been conducted. Apparently, plaintiffs counsel had not been in contact with defense counsel since the time the case was transferred to the Civil Court. Accordingly, defendant moved for dismissal of the complaint, pursuant to CPLR 3126, on the ground that plaintiff bad failed to comply with various court orders, including the PC order and the compliance conference order. Although no opposition papers were submitted by plaintiff, the court below denied the motion to dismiss and directed the parties to comply with a new discovery schedule. This appeal ensued.
It is now almost nine years since plaintiff filed the summons and complaint. Discovery is still in its very initial stages — indeed, it has barely begun. The plaintiffs willful and contumacious conduct may be inferred from his failure to either comply with or object to defendant's discovery requests or the court's discovery orders over the course of these many years, coupled with the lack of a reasonable excuse for failing to comply ( see Birch Hill Farm, Inc. v. Reed 272 AD2d 282). In fact, inasmuch as plaintiff failed to submit papers in opposition to defendant's motion to dismiss, his excuses were improperly offered for the first time on appeal and such factual allegations are dehors the record and, therefore, should not be considered ( see Chimarios v. Dubl, 152 AD2d 508). In any event, the excuses proferred were insufficient to warrant anything less than dismissal in view of the fact that plaintiff did virtually nothing in this case over an extended period of time. Accordingly, in my view, the court below should have granted defendant's motion and dismissed the complaint.